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Brown v Brown

Brown v Brown

Case [2021] NZHC 2030 6 August 2021

Admissibility of Evidence

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Contempt of Court

Succession Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-948

[2021] NZHC 2030

UNDER Part 18 High Court Rules, The Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the estate of RICHARD BROWN

BETWEEN

DANIELLE BROWN

Plaintiff

AND

NICHOLAS BROWN AND

ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN

Defendants

…/cont

Hearing: On the papers

Appearances:

S R Jefferson QC and J L Thomas for Plaintiff in CIV-2019-404- 948

M G Locke for Plaintiff in CIV-2019-404-1212 P McKendrick for the Defendants

A H Waalkens QC and S A Beattie for Nicholas, Interested Party G Bogiatto for Sarah, Interested Party

H Fulton for Brodie, Interested Party

Judgment:

6 August 2021

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me
on 6 August 2021 at 12.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BROWN v BROWN [2021] NZHC 2030 [6 August 2021]

CIV-2019-404-1212

UNDERPart 18 of High Court Rules, the Family Protection Act 11955

IN THE MATTER of the Estate of RICHARD BROWN BETWEEN BELINDA BROWN
Plaintiff

AND NICHOLAS BROWN AND
ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN
Defendants

Solicitors: Schnauer and Co Ltd, Auckland
Davenports West, Auckland Glaister Ennor, Auckland Denham Branwell, Manukau G Bogiatto, Auckland
R Wood, Auckland

Counsel: S R Jefferson QC, Auckland
A H Waalkens QC, Auckland H Fulton, Auckland
M Locke, Auckland

Introduction

[1]Richard Brown1 died on 12 August 2018.

[2] Claims were made under s 4 of the Family Protection Act 1955 (the Act) by: two of Richard’s three children, Danielle and Sarah, for further provision from their father’s estate; one of Danielle’s three daughters, Belinda, for provision from her grandfather’s estate;2 and Sarah’s son Brodie, for further provision from his grandfather’s estate.

[3] The applications were opposed by Richard’s third child and primary beneficiary, Nicholas (in his personal capacity).3 Nicholas is also an executor of the estate along with solicitor, Robert Narev. The executors abided the decision of the Court.

[4] In my judgment, I dismissed all of the claims having found no breach of moral duty.4

[5] I reserved costs and directed that if the parties could agree costs, a joint memorandum should be filed. Costs have been agreed as between Danielle, Nicholas and the executors. Costs have similarly been agreed as between Sarah, Nicholas and the executors. I have made orders by consent in consequence of those two agreements. There is no claim for costs against Brodie, given his personal circumstances.

[6] That just leaves the granddaughter Belinda. Costs have not been agreed between Belinda and Nicholas nor between Belinda and the executors. The parties have filed separate memoranda. This judgment determines the costs claims against Belinda.

1 This is not his real name. Having regard to the allegations made (which are of a sensitive nature), I did not use the real names of any of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Brown

Details

AGLC: Brown v Brown [2021] NZHC 2030
Case: [2021] NZHC 2030
Decision Date: 6 August 2021

CaseChat Overview and Summary

This case involved claims under the Family Protection Act 1955 by several family members of the deceased, RICHARD BROWN, for further provision from his estate. The claims were opposed by RICHARD's son, NICHOLAS, who was also an executor of the estate. The court dismissed all claims, finding no breach of moral duty. The case then proceeded to a determination of costs. NICHOLAS and the executors sought costs against BELINDA, one of the deceased's granddaughters, who had brought her own claim against the estate. The executors sought scale 2B costs, while NICHOLAS sought a 100% uplift on scale 2B costs plus additional costs for the costs application. Belinda argued that costs should lie where they fell, that she was impecunious, and that any costs should be apportioned between all claimants. The court found that costs should not lie where they fell as Belinda's claim was unmeritorious and would unfairly burden the residuary beneficiaries. The court also found that Belinda was not impecunious and that a reduction in costs was not warranted. The court found that Belinda's claim lacked merit and that she unreasonably rejected a Calderbank offer. Accordingly, the court ordered an uplift of 40% on scale 2B costs for NICHOLAS, and awarded scale 2B costs to the executors. The court also awarded NICHOLAS costs for the costs application. Finally, the court refused Belinda's application for a stay of enforcement of the costs orders.

Orders